Antony K. Varghese and Dawn Eldo v Kadungallur Grama Panchayath and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **SATURDAY, THE 26TH DAY OF OCTOBER 2019 / 4TH KARTHIKA, 1941** ## **WP(C).No.7701 OF 2019(K)** ## **PETITIONERS:** **1 ANTONY.K.VARGHESE,AGED 45 YEARS S/O.K.A VARGHESE, REMYA, KOLLAMPARAMBIL HOUSE, THOTTAKKATTUKARA P.O., ALUVA, ERNKULAM DISTRICT, PIN-683 108 2 DAWN ELDO,AGED 44 YEARS,S/O.P.C KORATHU, VIII/372, ALUVA MUNICIPALITY, PARAVEETTIL HOUSE, TASS ROAD, ALUVA P.O., ERNAKULAM, PIN-683 101** **BY ADVS. SRI.M.R.ANISON SMT.P.A.RINUSA SRI.ABHILASH BHASKAR SRI.BINU JOHN SRI.J.ARUN** ## **RESPONDENTS:** **1 KADUNGALLUR GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, MUPPATHADAM P.O. ALUVA-683 110** - **2 THE COASTAL ZONE MANAGEMENT AUTHORITY,REPRESENTED BY ITS DIRECTOR, OFFICE OF THE DIRECTOR OF COASTAL ONE MANAGEMENT AUTHORITY,THIRUVANANTHAPURAM-695 034** - **3 THE REVENUE DIVISIONAL OFFICER, FORT KOCHI, ERNKULAM-682 001** - **4 THE TAHSILDAR, NORTH PARAVUR, ERNAKULAM DISTRICT-683 513** - **5 ADDL. 5 N.RAMACHANDRAN, S/O. LATE P.N. NARAYAN PILLAI, AGED 84 YEARS, RESIDING AT ARYANCHERY MADOM, WEST KADUNGALLOOR, ALUVA, ERNAKULAM DISTRICT, PIN-683110. (ADDL. RESPONDENT NO. IS IMPLEADED AS PER ORDER DATED 2610-2019 IN IA 5/2019).** **R1 BY ADV. SRI.DINESH MATHEW J.MURICKEN R2 BY ADV. SRI.M.P.PRAKASH-SC R3-4 BY GOVERNMENT PLEADER R5 BY ADV. T.C.SURESH MENON R5 BY ADV. SRI.P.S.APPU R5 BY ADV. SRI.A.R.NIMOD** ## **SMT.K.AMMINIKUTTY, SR.GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.7701 OF 2019(K)** **2** ## **JUDGMENT** The petitioners have approached this Court, seeking that directions be issued to the 1[st] respondent-Kadungallur Grama Panchayat to number the building, already constructed by them in their property, comprised of in Survey Nos.325/6, 325/1A, 325/1B and 325/6 of Kadungallur Village; and also impugn Ext.P8 order, as per which their earlier application has been rejected. 2. According to the petitioners, Ext.P8 is untenable because, as per the said order, they have been asked to produce an order from the Revenue Divisional Officer (RDO) under the provisions of Kerala Land Utilization Order (KLU Order for short), as also a No Objection Certificate from the Kerala Coastal Zone Management Authority (KCZMA) and that both these conditions are without purpose and therefore, illegal. They say that their properties are fully converted “garden land” and that they have already obtained Ext.P13 judgment from this Court, wherein it has already been found so, and wherein a consequential direction had been issued to the RDO to give them necessary permission under Clause 6 of the KLU Order. **WP(C).No.7701 OF 2019(K)** **3** 3. The petitioners allege that in spite of the directions in Ext.P13, the RDO has issued Ext.P14, rejecting their application and asking them to approach the competent Authority under the now defunct Section 3A of the Kerala Conservation of Paddy Land and Wetland Act. The petitioners thus impugn Exts.P8 and P14 and pray that the same be set aside. 4. In response, the learned Standing Counsel appearing for Kadungallur Grama Panchayat-Sri.Dinesh Mathew .J. Murickan, submits that Ext.P8 has been issued only because this Court had directed, through Ext.P13, that the petitioners must present before them an under the KLU Order, but they have not been able to do so. He says that, in fact, the petitioners have merely not been issued such an order by the RDO, but that it has been rejected as is evident from Ext.P14. He further says that, the requirement in Ext.P8 for the petitioners to approach the KCZMA and to obtain a clearance was because the Panchayat suspects that the property in question was governed by the Kerala Coastal Zone Regulations and the Plan there-under and therefore, that Ext.P8 may not be interdicted. 5. The learned Senior Government Pleader, Smt.K.Amminikutty, appearing on behalf of the official **WP(C).No.7701 OF 2019(K)** **4** respondents, submits that the petitioners have challenged Ext.P14 in this writ petition in a belated fashion, because, it is dated 27.02.2016. She says, therefore, that the challenge against Ext.P14 may be dismissed and the petitioners be directed to act as per its terms. 6. Sri.M.Prakash-learned Standing Counsel appearing for the 2[nd] respondent-Coastal Zone Management Authority, submits that an affidavit has been filed on record, wherein, it has been stated that, at the time when the building permit had been issued to the petitioners, the Kadungallur Grama Panchayat had not been included in the Coastal Zone Management Plan (CZMP) of the year 1996. He says that the Panchayat has subsequently been included in the CZMP 2011 under CRZ III category and therefore, that though the Coastal Regulation Zone (CRZ) Notification, 2011 is applicable to this case, the CZMP-1996 was not in existence at the time of issuance of the building permit. He says, therefore, that going by the various judgments of the Hon’ble Supreme Court and of this Court in this area, the petitioners will be entitled to use the building permit _de hors_ CRZ Notification 2011, since it is the law at the time of grant of the said permit which is relevant. He says that, therefore, the second **WP(C).No.7701 OF 2019(K)** **5** respondent has no objection in numbering the building now constructed by the petitioners. 7. When I consider the afore submissions and go through the materials on record, it is obvious that the petitioners' challenge are two fold. For the first, they say that Ext.P14 is untenable and illegal because Ext.P13 judgment has already declared the land to be eligible for being used for any other purpose other than paddy cultivation. For the second, they assert that the requirements in Ext.P8 are unnecessary, since the property does not come within the ambit of the Coastal Zone Regulations. However, as is clear from Ext.P14, right or wrong, the RDO has rejected the petitioners’ application under the KLU Order and I cannot, therefore, find that the stand of the Municipality, that the petitioners must produce an order as per the directions in Ext.P13 judgment, to be, in many manner, irregular. The petitioners certainly will have to produce necessary orders from the RDO, but, since their application has been now rejected, the question is whether Ext.P14 is valid or otherwise. 8. On the validity of Ext.P14, certainly the petitioners appear to have approached this Court much after it was issued in the year 2016. However, that by itself may not be fatal because, **WP(C).No.7701 OF 2019(K)** **6** in Ext.P13 judgment there are certain very specific directions and observations by a learned Judge of this court. Going through Ext.P14, I cannot find that it has been issued in implicit compliance of the directions in Ext.P13 and consequently, notwithstanding the objections of Smt.Amminikkutty-learned Senior Government Pleader, that the challenge is belated, I deem it appropriate to accede to the request of the petitioners and to consider the validity of Ext.P14. 9. As I have already indicated, Ext.P14 has been issued, solely because, the Paddy Land Act had been amended and provisions of Section 3A, which are now defunct, had been introduced. It is also stated therein that on account of the judgment of the Honourable Supreme Court in _**Revenue Divisional Officer v. Jalaja Dileep**_ [2015(1) KLT 984], regularization of the property is not possible under the KLU Order, but only under the Paddy Land Act. However, these observations in Ext.P14 are absolutely untenable because, in Ext.P13, as rightly pointed out by Sri.M.R.Anison-learned counsel for the petitioners, a learned Judge of this Court has already declared that the petitioners' application under the KLU Order must be considered, particularly, because, the property is no **WP(C).No.7701 OF 2019(K)** **7** longer a paddy land-it remaining as a garden land for the last several years. I, therefore, cannot find favour with Ext.P14 and am certainly of the view that the RDO must reconsider the petitioners' application under the KLU Order as expeditiously as possible. 10. Coming to Ext.P8, there is no doubt that the first condition therein is justified because, going by Ext.P13 judgment, the petitioners ought to have obtained an order under the KLU Order. However, as regards the second condition that the petitioners must obtain clarifications from the KCZMA, it is now without doubt, from the submissions of Sri.M.P.Prakash, that this is unnecessary. Resultantly, I order this writ petition and direct the RDO to reconsider the petitioners' application under the KLU Order, after affording them an opportunity of being heard and following due procedure-including by obtaining the satellite images, if it has not been already obtained and the reports of the competent Authorities-as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. On the petitioners obtaining the afore order from the RDO, they will be at liberty to approach the Panchayat seeking **WP(C).No.7701 OF 2019(K)** **8** numbering of the building; in which event, its competent Authority will consider the same _de hors_ the second requirement in Ext.P8 and issue appropriate orders thereon, after carefully ensuring that the building in question is not vitiated for any reason, including violation of the building permit or the provisions of the applicable Building Rules. **Sd/-** nak **DEVAN RAMACHANDRAN JUDGE** **WP(C).No.7701 OF 2019(K)** **9** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE BUILDING PERMIT DATED 30.03.2015 ISSUED BY THE 2ND RESPONDENT** **EXHIBIT P2 TRUE COPY OF THE CERTIFICATE OF APPROVAL ISSUED BY THE FIRE AND RESCUE SERVICES, GOVERNMENT OF KERALA DATED 07.07.2018** - **EXHIBIT P3 TRUE COPY OF THE CONSENT LETTER ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD DTD.20.12.2018** **EXHIBIT P4 TRUE COPY OF THE REPORT OF CHIEF TOWN PLANNER (VIGILANCE) DATED 07.11.2017 ISSUED BY THE 2ST RESPONDENT DATED 18.12.2017** **EXHIBIT P5 TRUE COPY OF THE LETTER DATED 22.01.2018 ISSUED BY THE 2ND RESPONDENT** **EXHIBIT P6 TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 15.03.2018** - **EXHIBIT P7 TRUE COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DATED 14.02.2019** **EXHIBIT P8 TRUE COPY OF THE COMMUNICATION SENT BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT DATED 14.02.2019** **EXHIBIT P9 TRUE COPY OF THE RELEVANT PAGES OF BASIC TAX REGISTER** **EXHIBIT P10 TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER, KADUNGALLUR DATED 17.03.2014** **EXHIBIT P11 TRUE COPY OF HE CERTIFICATE ISSUED BY THE 4TH RESPONDENT DATED 18.03.2014 EXHIBIT P12 TRUE COPY OF THE RELEVANT PAGES OF THE ADVOCATE COMMISSIONER'S REPORT DATED 17.12.2014** **EXHIBIT P13 TRUE COPY OF THE JUDGMENT DATED 15.09.2015 IN W.P(C) NO.15945/2014** **WP(C).No.7701 OF 2019(K)** **10** **EXHIBIT P14** **TRUE COPY OF THE ORDER BEARING NO.K28697/15/KDIS DATED 27.02.2016 ISSUED BY THE 3RD RESPONDENT** **EXHIBIT P15 TRUE COPY OF THE REPLY DATED 15.05.2019 OBTAINTED UNDER RIGHT TO INFORMATION ACT.** **RESPONDENTS' EXHIBITS** **EXHIBIT R1 (A)** **TRUE COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT PANCHAYAT TO THE 2ND RESPONDENT DATED 22.01.2018** **EXHIBIT R1 (B) TRUE COPY OF THE APPLICATION SUBMITTED BY TEH PETITIONER BEFORE THE 1ST RESPONDENT PANCHAYAT DATED 04.02.2019.** //TRUE COPY// P.A TO JUDGE